The most powerful word in the world pops up everywhere. Ironically, this is on Sandown Pier on the Isle of Wight (UK) — a place that has not changed for 30 years.
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The Upcoming 7th Revision to the Title Insurance Rate Service Association (TIRSA) Rate Manual is effective on October 1, 2024

What is TIRSA?

The Title Insurance Rate Service Association (TIRSA) is an organization licensed by the New York State Department of Financial Services that provides guidelines for the pricing and availability of title insurance premiums and products in New York State. Since 1993, TIRSA has published, and revised, its TIRSA Rate Manual, which sets forth rules, definitions, risk classifications, premiums and rates for title insurance policies, endorsements and other forms used by members of TIRSA. Notably, any deviations from the TIRSA Rate Manual must be approved by the Superintendent of the New York State Department of Financial Services. The 7th revision to the TIRSA Rate Manual goes into effect on October 1, 2024.

What is the 7th Revision?

Briefly, the 7th revision to the TIRSA Rate Manual can be summarized as follows:

  • Adopts and mandates the use of the “new” 2021 American Land Title Association (ALTA) owner’s and loan policy forms, replacing the prior 2006 ALTA owner’s and loan policy forms;
  • Prohibits the use of no-fee affirmative insurance, additional insurance or express insurance unless contained in an approved endorsement contained in the TIRSA Rate Manual;
  • Adopts a number of endorsements previously unavailable in New York State, including a number of so-called “special risk” endorsements;
  • Provides for different pricing structures for certain endorsements depending on whether the land covered in the policy is residential or commercial; and
  • Amends a number of existing TIRSA endorsements.

What are the impacts of the 7th Revision?

The newly revised TIRSA Rate Manual goes into effect on October 1, 2024, and will impact any real estate transaction closing for which title insurance is to be issued taking place after such date.

  • Due to the prohibition on the use of no-fee affirmative insurance, title costs for real estate transactions will likely increase due to obtaining coverage via paid endorsements.
  • Issuance of certain endorsements may now require additional title searches, survey requirements and/or other diligence.
  • Lenders and attorneys representing lenders may need to issue updated closing disclosures to reflect amended closing costs for loans in progress.
  • Any title report, so-called “proforma” policy, and/or title invoice obtained prior to October 1, 2024, may require amendment and/or revision to reflect and incorporate the substantial revisions to the TIRSA Rate Manual, and will need to be carefully re-examined to determine whether any coverage issues and/or gaps may be presented by the newly revised TIRSA Rate Manual requirements.

We are closely monitoring the 7th Revision of the TIRSA Rate Manual so that we can assist our clients in navigating the changes ahead.

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In City of New York v Ball, 2024 NY Slip Op 24179 [Sup Ct, Albany County 2024], the Albany County Supreme Court upheld a determination of the Commissioner (“Commissioner”) of the Department of Agriculture and Markets (“Department”) that concluded the City of New York’s (“City”) local law banning food establishments from selling or serving foie gras and other force-fed products (“Foie Gras Ban”) unreasonably restricted and regulated farming operations in “upstate” New York.

This case concerned preemption and a conflict between State and local policies. The Court addressed the Commissioner’s/Department’s State agency power to effectively overrule local elected officials and the will of their electorate. At issue was whether an indirect, extraterritorial restriction or regulation falls within the purview of the farming protection framework, given that City’s Foie Gras Ban affected farming operations situated in Sullivan County – approximately 70 miles north.

Continue Reading Foie Gras Faux Pas: City Runs A-fowl of State Farming Protections

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The Shawangunk Ridge is a cluster of bedrock in upstate New York popular for its scenery and outdoor recreation. The Town of Gardiner’s (“Gardiner”) Shawangunk Ridge Protection District (“SRPD”) protects the scenic and ecological values of the Shawangunk Ridge and requires, among other things, a special use permit for development.

A property owner sought to subdivide and develop property situated within the SRPD; to wit: subdivide a 108-acre lot into two lots, maintain an existing dwelling on one lot, and construct a new dwelling on the second lot. The developer sought and obtained a special use permit and subdivision approval from the Gardiner Planning Board (“Planning Board”). Before the approval, the Planning Board issued a negative declaration pursuant to the N.Y. State Environmental Quality Review Act (“SEQRA”). Notably, the owner himself, a trained biologist and forestry professional, performed his own conservation analysis with respect to the Planning Board’s SEQRA review.

The Friends of the Shawangunks, an environmental conservation organization (“Friends”), commenced an Article 78 proceeding challenging the special use permit, subdivision approval, and negative declaration. The Supreme Court, Ulster County, dismissed the proceeding on the grounds that Friends lacked standing, and Friends appealed. On appeal, the Third Department reversed, held Friends had standing, and addressed the merits.

Continue Reading Friend of the Shawangunks v. Town of Gardiner Planning Board: Litigation Concerning a Popular Outdoor Recreation Area Prompts the Third Department to Address Organizational Standing, Special Permit Criteria, and Whether Expert “Bias” is a Consideration Under SEQRA

On May 13, 2024, the U.S. Environmental Protection Agency (“EPA”) and New York State officials broke ground on a clean water infrastructure project at Plant 6 of the Hicksville Water District, located in Nassau County.  This groundbreaking step represents just the initial phase of a comprehensive effort to implement a $9 million treatment system to remove a number of hazardous per- and polyfluoroalkyl substances (“PFAS”), also known as “forever chemicals,” from Hicksville’s water supply, and secure clean drinking water for local residents. 

PFAS are used in food packaging and in products that resist heat, oil, stains, grease and water, such as nonstick cookware, water-repellent clothing and some cosmetics, among many other industry and consumer products.  PFAS exposure has been linked to, inter alia, certain cancers, increases in cholesterol levels, changes in liver enzymes, and immune system and development damage to infants and children.

Continue Reading Navigating the Waters: A Long Island Community’s Response to the EPA’s PFAS Directive

Recently, in On Point Window Treatment, Inc. v. 208 Clinton Place, LLC, 2024 N.Y. Slip Op. 50241 (N.Y. Sup. Ct. 2024), the Kings County Supreme Court held that even when paired with an insurance procurement requirement, a landlord could not rely on an indemnity clause negotiated into its lease to exempt such landlord from liability.

Under General Obligations Law § 5-321 “agreements that purport to exempt landlords from liability for negligence are void” and unenforceable. However, it has long been understood that this does not apply “when a lease provision arrived at an arm’s length negotiation between two sophisticated parties requires both parties to allocate the risk of liability to third parties between themselves through insurance.” See On Point Window Treatment Inc. at 6 (internal citations omitted). The Court of Appeals reaffirmed this concept in 2006 when they stated in Great N. Ins. Co. v. Interior Constr. Corp., that “a commercial lease negotiated between two sophisticated parties who included a broad indemnification provision, coupled with an insurance procurement requirement” was enforceable, and held that when “a lessor and lessee freely enter into an indemnification agreement whereby they use insurance to allocate the risk of liability to third parties between themselves, General Obligations Law 5-321 does not prohibit indemnity.” See Great N. Ins. Co. v Interior Constr. Corp. (7 NY3d 412 [2006]).

Landlords and their counsel have relied on this structure of coupling an insurance requirement on the tenant with a negotiated indemnification clause as a way to limit a landlord’s exposure under a lease. However, the On Point Window Treatment, Inc. decision suggests that landlords and their counsel should be wary in their reliance on this structure.

In On Point Window Treatment, the tenant alleged that it “sustained significant damage to its leased space” as a result of the landlord’s negligence in maintaining the roof. See On Point Window Treatment, Inc. at 4. The landlord, in its defense, relied on the finding of the Court of Appeals in Great N. Ins. Co. and turned to its indemnification provision and insurance requirement of tenant in the lease. Such indemnification exempted the landlord from, among other things, liability for any damage caused by the roof. In addition, the insurance provision in the lease stated that the tenant assumed all risk of loss or damage to its property and was to maintain insurance coverage against such risks. See id. Further, the lease asserted that the landlord would not “incur any liability or responsibility for tenant’s property.” See On Point Window Treatment, Inc. at 4-5. The landlord argued that, because the lease was an “arm’s length negotiation between two sophisticated parties” that “allocate[s] the risk of liability to third parties between themselves through insurance” such indemnification clause should not be prohibited by General Obligations Law 5-321. See id.

However, the court found the opposite. In so holding, the court stated that “the insurance procurement clause was not an agreement to allocate the risk of liability to third persons but rather a means for [landlord] to avoid liability to [tenant] for its own negligence.” See On Point Window Treatment, Inc. at 7. The court ultimately found that the purpose of the indemnity provision was to exempt the landlord from liability for its own negligence, and therefore, violated General Obligations Law § 5-321. See id.

Takeaway: Landlords and their counsel should use caution when relying on indemnification provisions paired with insurance procurement clauses in order to limit liability under a lease.

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On September 22, 2023, Governor Kathy Hochul signed legislation (A.1967/S.5400) amending the Property Condition Disclosure Act (“PCDA”), which effectively eliminates a seller’s option to provide a residential homebuyer with a $500 credit in lieu of a Property Condition Disclosure Statement (“PCDS”). The amendment further requires sellers to disclose property information regarding flood risk, flood history and flood insurance.  This consequential shift is consistent with Gov. Hochul’s implementation of her comprehensive resiliency plan to protect New Yorkers from extreme weather. The amendment goes into effect on March 20, 2024.

This bill goes a long way towards helping give homebuyers the information they need to make informed decisions about one of the biggest financial investments of their lives — their home.

Joel Scata, Natural Resources Defense Council Attorney for Water Initiatives

Elimination of “Opt-Out” Provision

The New York legislature enacted the PCDA to supplement the information provided by professional inspections and tests and searches of the public records conducted by residential homebuyers (New York Sponsors Memorandum, 2001 Ch. 456). The PCDA was also a response to adherence seen in New York’s case law to the doctrine of “caveat emptor” or “buyer beware,” which has long permitted a residential seller to remain silent as to most matters that are not actively concealed by the seller.  Consequently, buyers ended up with the burden of thoroughly inspecting the premises, searching public records and asking sellers the “right” questions about the property.  Despite the introduction of the PCDA, sellers were given the opportunity to “opt out” of providing buyers with a PCDS, if they were willing to pay the price – $500. Unsurprisingly, the $500 credit to the purchaser became the standard, and not the PCDA.

Continue Reading Disclosure Revolution: Legislation Makes Property Condition Disclosure Statements Mandatory, Adding Flood Risks, and Waving Farewell to the $500 Credit
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The 2022/2023 State budget included watershed (no pun intended) amendments to the regulations governing New York’s Freshwater Wetlands. It has been published that the changes to the Freshwater Wetlands Act are expected to capture approximately one million acres (1,560 square miles) of previously unregulated freshwater wetlands – the equivalent in landmass of 1/10th the state of Rhode Island.  As part of the move, the New York State Department of Environmental Conservation (“DEC” or “Department”) is seeking information from stakeholders as it considers the revisions to the regulations and develops criteria to implement the Act. 

Continue Reading DEC Seeks Feedback by February 17th as it Considers Revamped Freshwater Wetland Regulations
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Recently in BMG Monroe I, LLC v. Village of Monroe Zoning Board of Appeals, the Second Department reinforced strict compliance with all State Environmental Quality Review Act (“SEQRA”) visual impact findings and mitigation conditions.

BMG Monroe I, LLC, (“BMG”) is a developer that owns at 78.93-acre tract of undeveloped land located in both the Town of Monroe and the Village of Monroe. BMG sought to develop 181 residential units on the property.

In 2001, a developer (not BMG) submitted an application to the Town and Village to develop the Property for residential use: the Smith Farm Project. The Smith Farm Project included 181 homes and on-site recreational amenities, including a community green, a recreation/activity center, an outdoor swimming pool, and a network of walking trails.

Continue Reading Exact Compliance with SEQRA Architectural Conditions Are Enforceable

In Matter of County of Monroe, 72 NY2d 338 (1988), the New York Court of Appeals addressed the applicability of local zoning laws to actions undertaken by a government entity operating within a geographic area subject to another government entity’s zoning powers. The controversy in Monroe involved the expansion of a county-owned and operated airport located within the corporate boundaries of the City of Rochester. The Monroe Court established that governmental immunity from local zoning is determined based upon a “balancing of public interests” that requires the consideration of nine factors, including “the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests” 72 NY2d at 343 (citations omitted).

Continue Reading Under Monroe Doctrine, Government Immunity from Local Zoning May Extend to Private Projects
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Filios Sazeides, Unsplash

The initial phase of New York City Local Law 18, also known as the Short-Term Rental Registration Law, went into effect in New York City on Tuesday, September 5th, 2023.  Enforcement of Local Law 18 is expected to significantly reduce the number of illegal, short-term rental listings – i.e. listings for less than thirty (30) consecutive days – available in New York City, especially on major online booking platforms such as Airbnb and VRBO. 

Under the New York City Multiple Dwelling Law, it is illegal to rent out your apartment and/or home for less than 30 consecutive days, except in very limited circumstances.  For a short-term rental to be legal under the Multiple Dwelling Law, (i) no more than two (2) paying guests may be hosted at a single time, (ii) the host must maintain primary occupancy and reside in the dwelling unit during the stay, and (iii) the paying guests must have access to all parts of the listing, what is referred to as a “common household.” 

Continue Reading Goodbye to Airbnb in NYC?